BOARD OF REFEREES CONSEIL ARBITRAL

Employment Insurance Assurance-em ploi

Case number - Numéro de la cause

BOARD OF REFEREES DECISION
DÉCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelant/appelante File number - Numéro de dossier

Christian Martin

Service Canada Centre address - Adresse du Centre Service Canada

•
Place of hearing - Endroit de l'audience
300 Sparks St., 3rd Floor West 1
Ottawa ON K1A OJ6 300 Sparks St., 3rd Floor
Place de Ville, Podium Building
Ottawa ON K1A OJ6

Atlending pariies and witnesses heard during the hearinq wiih their title.jn-person, teleconference, videoconference or on the record
Parties présentes et témoins entendus à l'audience ainsi que leur titre, en personne, téléconférence, vidéoconférence ou sur la foi du dossier

Christian Martin - Claimant -

Stephen Moreau - Cavalluzzo Hayes Shi Iton Mclntyre & Cornish LLP - Claimant representative

Date
Hearing audio recorded lZl Enregistrement de l'audience
11-September -2009

DECISION OF THE BOARD OF REFEREES -- DÉCISION DU CONSEIL ARBITRAL

ISSUE:

Whether or not the claimant qualifies for a benefit period by virtue of section 12(4) of the
Employment Insu rance Act (hereinafter called the "Act")

INFORMATION FROM THE DOCKET:

The claimant applied for 35 weeks of employment insurance parental benefits (Exhibit 4) on April
271h 2009 (Exhibit 8-8) to care for his infant daughter Lucie Martin (Exhibit 8-9). His children
(identical twins) (Lucie and Athena) were born April 21512009 (Exhibit 8-7).

On April 2ih 2009 the mother of the children had also successfully applied for 35 weeks of parental
benefits (Exhibit 6) to care for their twin daughter Athena.

ln response to the claimant's application for parental benefits, the Commission advised the
claimant as follows:" ... you have not proven that you are the parent that will be taking the 35 weeks
of parental benefits for this birth. Your wife has applied for the 35 weeks of parental and you have
ntlPrésidente Member - Membre ~-::..). ...

R. Pitre.' ().

~ ...~
~ .,../

Date decision signed - Décision signée le Decision sent on - Date d'envoi de la décision
11-Se.t>tember-2009 14-September-2009
j

PROTECTED WH EN COMPLETED - B
PROTËGË UNE FOIS REMPLI - B

INS 2244 (08-02) B

607210-40 Canada
1
 BOARD OF REFEREES CONSEIL ARBITRAL
Employment. Insurance Assurance-emploi

Case number - Numéro de la cause

BOARD OF REFEREES DECISION
DÉCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelant/appelante File number - Numéro de dossier

Christian Martin

stated you are agreeable to her being paid these benefits. 1appreciate that you would like to be
paid 35 weeks of parental benefits as weil due to the fact that your wife gave birth to twins."
(Exhibit 5)

The claimant appealed the decision of the Commission through legal counsel based on two issues,
most notably:
(1) Ooes the limitation of parental insurance benefits to one 35 week claim per child
violates the Canadian Charter of Rights and Freedoms, more particularly section 15
thereof (Exhibit 10-1 ).He is a claimant caring for one child Lucie Martin (10-3).

(2) Should not Subsections 12(3) and 12(4) be read in the context of sections 12(1) and 23,
and that entitlement to benefits are dependent on the claimant's status as a claimant
and not be restricted by a combined 35 week claim by both parents due to the existence
of one pregnancy or one birth (Exhibits 10-3,10-4).

EVIDENCE AT THE HEARING:

The appellant was present along with his legal counsel Mr. Stephen Moreau.

The hearing was recorded.

There was new written evidence marked as Exhibits 14 and 15 as weil as a lengthy legal
submission.

The claimant stated as follows:

-the infant twin children Lucie and Athena were born premature and underweight, requiring
constant care attention, thatwould overwhelm one parent alone.
-due to serious health complications of the mother during the pregnancy, there was special medical
measures taken to assist the mother, but in any event, the mother and the clairnant were
exhausted by the pregnancy complications.
-The claimant would not be returning to work before January 2010, due to the parental care
required at home.

Chairperson - Président/Présidente Member - Membre

,~

o ~-
..

J.D~ R. Pitre
Date decision s;. ned - Décision signée le Dea ion sent on - Date d'envoi de la décision
11-SeptemQer-2009
, 14-September-2009
1

/ PROTECTED WHEN COMPLETED - B

PROTËGË UNE FOIS REMPLI - B

Canada
INS 2244 (08-02) B

607210-40

2
 BOARD OF REFEREES CONSEIL ARBITRAL
Employment Insurance Assurance-emploi

Case number - Numéro de la cause

BOARD OF REFEREES DECISION
DÉCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelant/appelante File number - Numéro de dossier

Christian Martin
•
-The claimant made an application for parental insurance benefits for one infant Lucie, while the
mother of the twins successfully applied for parental benefits for the care of the other child Athena.
- The Commission denied parental benefits to the claimant for his care of Lucie.

FINDINGS OF FACT, APPLICATION OF LAW:

The Board finds the relevant facts as follows:

-During the pregnancy, the mother had serious health problems, and the children were born
prematurely.
-Both parents suffered sleep deprivation, fatigue, and onerous household obligations directly
related to the birth of two children.
-claimant found the caring of two infants "incredibly difficult", and overwhelming without the
assistance of the other parent. Due to the delicate nature of the health of the children after birth,
outsidehelp was not possible.
-The claimant does not contemplate returning to work before January 2010, because of the
onerous overwhelming obligations associated with the needs of caring for two infants.
-Because the mother of Lucie has obtained parental benefits for the care of the other child Athena
the Commission denied the claimant parental benefits by the father for the care of their child,
Lucie.

Issue 1 Canadian Charter of Rights

The Board has no jurisdiction to deal with this ground of appeal. See Tetreault-Gadoury (A-760-
86).

Issue 2 Section 12(4) of the Act

Subsection 12 (4) states:

"The maximum number of weeks for which benefits may be paid ... (b) for the care of one or more
new-born or adopted children as a result of a single pregnancy or placement is 35".

Chairperson - Président/Présidente Member - MeQmbre ~_.,. Member- e b

~
R. Pitre .......----- y/"",,,_.. ~~
J.DHa~
Date declsios signed - Décision signée le Decision sent on - Date d'envoi de la décision
11-Septetnber-2009 14-September-2009
/
PROTËCTED WHEN COMPLETED - B
PROTÉGÉ UNE FOIS REMPLI - B

Canada
INS 2244 (08·02) B

607210-40

3
 BOARD OF REFEREES CONSEIL ARBITRAL
Employment Insurance Assurance-emploi

Case number - Numéro de la cause

BOARD OF REFEREES DECISION
DÉCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelanUappelante File number - Numéro de dossier

Christian Martin
.2
eus 22338 ruled that the number of payable weeks is defined in the Act and that rendering a
contradictory decision is contrary to law, supported by eus 70706

CUS 58849 confirmed that the maximum parental benefits is 35 weeks.

The purpose of the Act is clear in cases of a claimant and the birth of children: the benefits are to
assist an interruption of earnings as a natural consequence of birth of their children Tomasson v
Canada (Attorney General) 2007 FCA 265

The Act is to be liberally construed with any ambiguities to be resolved in favour of the claimant.
See Sullivan on the Construction of Statutes, 5th ed, at p.467.

The issue is where the claimant's wife qualifies for parental benefits for one child Athena does this
. disentitle the claimant's husband lor his care of their child Lucie? .

It is c1ear that Subsection 12(4)(b) effectively states that once a claimant claims the 35 weeks
associated with that child, the child cannot be used to claim another 35 weeks. The claim is limited
to a "single pregnancy", and only a subsequent pregnancy will allow another claim. ln other words,
this subsection allows for a claim for each pregnancy, and not limited to only one pregnancy.

It is also clear that the Act is structured to benefit a claimant who has pa id for his/her insurance
coverage. Section 12(1) speaks of benefit periods "for a claimant" and benefits paid "to a claimant".
Unfortunately Subsection 12 (4) does not specifically refer "to a claimant" in the wording, but there
is no other reasonable interpretation of this section.

ln this particular appeal, the father and the mother have two children. Father files claim for Lucie,
rnother for Athena.

Section 12(3)(b) tells the father that the value of his claim is limited to 35 weeks.

Section 12(3)(b) tells the mother that the value of her claim is limited to 35 weeks.

e
"'?7""''' Member - Membre _.•.; •...---..., Memb~Me~
cha,<p

J.D Haz RPitre O~/

Date decislojî'siqned - Décision signée le
~'~
, ,~

,. :;:ryal .15
Decision sent on - Date d'envoi de la décision
11-Sept7~ber-2009 14-September-2009
f
1 PROTECTEO WHEN COMPLETEO - 8
PROTËGË UNE FOIS REMPLI - 8

Canada
INS 2244 (08-02) B

607210-40

4
 BOARD OF REFEREES CONSEIL ARBITRAL
Employment Insurance Assurance-emploi

Case number - Numéro de la cause

BOARD OF REFEREES DECISION
DÉCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelant/appelante File number - Numéro de dossier

Christian Martin 1
So, the value of their combined claims as claimants is 70 weeks. However, section 12(4)(b) states
that the total claim for the care of "one or more ... children" is limited to 35 weeks.

Since father is claiming 35 weeks for Lucie, no body else can claim 35 weeks of benefits for the
care of Lucie.

Since mother is claiming 35 weeks for Athena, nobody else can claim 35 weeks of benefits for the
care of Athena.

The result is that the parents' claims are limited to 35 weeks per claimant per child. Two claimants
makirig separate claims for separate child are entitled to make separate 35 week claims.

DECISION:

The Board unanimously allowed the appeal.

Chairperso~idente Member - Membre~· ~

J.D Hn
/-
R.Pitre ~
Date decisian signed - Décision signée le Decision sent on - Date d'envoi de la décision
11-Septimber-2009 14-September-2009
/
PROTECTED WHEN COMPLETED • B
PROTÉGÉ UNE FOIS REMPLI - B

Canada
INS 2244 (08-02) B

607210-40